DOL PROMULGATES NEW LABOR CERTIFICATION RULES

By Attorneys Robert L. Reeves and Elsie H. Arias

Addressing concerns about fraud and abuse of the labor certification system, the Department of Labor (DOL) recently announced new regulations regarding labor certifications, including ending employers’ ability to substitute alien beneficiaries, imposing a 180-day validity period of labor certifications, and regulating the payment of attorney fees associated with the filing of labor certifications. These rules will take effect on July 16, 2007.

As we have previously discussed in this column, the labor certification process is necessary for alien workers to gain lawful permanent residence through an employer for most occupations. Before the Department of Homeland Security – U.S. Citizenship and Immigration Services (USCIS) may approve employment-based immigrant visa petitions, the DOL must first certify to the USCIS that: (1) there are not sufficient U.S. workers, who are able, willing, qualified, and available at the time of the application for a visa and admission into the U.S. and at the place where the alien is to perform the work; and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

One major change in the adjudication of labor certifications is the substitution of a beneficiary. Although not codified in law or regulation, the USCIS and DOL permits the substitution of new beneficiaries for pending or approved labor certifications to accommodate employers and their labor needs. Unfortunately, the DOL claimed that some unscrupulous lawyers and employers sold labor certifications to foreign nationals not originally identified as the beneficiary and where a bona fide job opportunity did not exist. To prevent this type of abuse in the labor certification system, the DOL will prohibit the substitution of alien beneficiaries on the rule’s effective date. Previously-approved substitutions and requests for substitutions made prior to July 16, 2007, will remain valid.

In its new rule, the DOL will also impose a 180-day validity period for approved labor certifications. Labor certifications are presently valid for an indefinite time, but after July 16, 2007, employers must file the I-140 immigrant visa petitions with the USCIS within 180 days of the labor certification approval. Immigrant visa petitions filed after 180 days of a labor certification’s approval will be denied because the labor certification will no longer be considered valid. Labor certifications approved before the rule’s effective date of July 16, 2007, will also be subject to the 180-day deadline, i.e., employers will need to file I-140 visa petitions based on these prior labor certifications prior to January 12, 2008.

The DOL also clarifies in its impending rule that the barter, purchase, and sale of labor certifications is prohibited, and sets forth the ramifications for employers or attorneys engaged in this unlawful conduct, including suspension, criminal indictment, and disbarment.

The most controversial part of the DOL’s new rule concerns the payment of costs and attorney fees associated with filing labor certifications. The regulations are presently silent as to whether employer or employee should bear these costs, but the new rule clearly delineates each party’s financial obligations. Effective July 16, 2007, attorneys representing both the employer and alien worker in a labor certification must be paid directly by the employer for legal fees associated with preparing the application and representation before the DOL. Employers will also be responsible for paying for advertisements and related costs, which the DOL believes will help safeguard the integrity of the labor certification process. These costs cannot be transferred to or shared with the alien worker. Should the foreign national retain an attorney to represent him in the labor certification process, and this attorney will not also be representing the employer, the foreign national will be allowed to pay fees directly to the attorney. This particular rule may be challenged by various immigration attorneys through litigation for interfering with contractual relationships between an attorney and a client.

Obtaining a labor certification from the DOL entails complex issues legally and procedurally for both the employer and foreign national seeking resident status. Employers and individuals seeking legal representation in these matters should consult experienced immigration counsel.